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(영문) 대법원 1990. 3. 23. 선고 89누4789 판결
[기타소득세등부과처분무효확인][집38(1)특,487;공1990,981]
Main Issues

Whether withholding by an administrative agency, which is a withholding agent, is an administrative disposition (negative)

Summary of Judgment

With respect to withholding income tax, the amount of tax is automatically determined as prescribed by law without a report by a taxpayer or a decision by a tax authority, and a withholding agent bears the duty to collect the amount of tax automatically determined under Articles 142 and 143 of the Income Tax Act from a recipient and pay it to the tax authority. Thus, even if an administrative agency is the same as the tax authority, the withholding agent is merely for performing the duty to collect and pay taxes prescribed by the law, and it does not constitute an administrative disposition as an exercise of public authority.

[Reference Provisions]

Article 22(3) of the Framework Act on National Taxes, Article 2 of the Administrative Litigation Act

Reference Cases

Supreme Court Decision 82Nu174 delivered on December 13, 1983 (Gong1984, 183) 82Nu177 delivered on February 14, 1984 (Gong1984, 514)

Plaintiff-Appellant

Attorney Han-soo et al., Counsel for the defendant-appellant

Defendant-Appellee

Seoul Regional Tax Office

Judgment of the lower court

Seoul High Court Decision 88Gu10437 Decided June 5, 1989

Text

The appeal is dismissed.

The costs of appeal are assessed against the plaintiff.

Reasons

As to the ground of appeal by the Plaintiff’s attorney:

With respect to withholding income tax, the tax amount automatically becomes final and conclusive as prescribed by the law without a report by a taxpayer or a decision by the tax authority, and the withholding agent bears the duty to collect the tax amount automatically finalized under Articles 142 and 143 of the Income Tax Act from the recipient and pay it to the tax authority. Thus, even if the withholding agent is an administrative agency like the tax authority, his act of withholding is merely for performing the duty to collect and pay taxes as provided by the law, and it does not constitute an administrative disposition as an exercise of public authority (see Supreme Court Decision 82Nu174 delivered on December 13, 1983; Supreme Court Decision 82Nu177 delivered on February 14, 1984). In the above purport, the judgment of the court below dismissing the lawsuit of this case is just and there is no error of law as a theory of lawsuit. The argument is groundless

Therefore, the appeal is dismissed, and the costs of appeal are assessed against the losing party. It is so decided as per Disposition by the assent of all participating Justices.

Justices Yoon Young-young (Presiding Justice)

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심급 사건
-서울고등법원 1989.6.5.선고 88구10437
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